United States v. Daniels, 22-60596 (5th Cir. 2023)

Hopefully, a short one.

4473 and the Gun Control Act of 1968, as amended

All of us have had the pleasure of filling out a form 4473, waiting for some bureaucrat decides that we are good enough to exercise our right to keep and bear arms, and finally give us permission. Most of form 4473 is bogus. It is designed to do a few things.

To capture owner identification and associate it with one or more firearms, a registry. To for the seller to keep an accurate inventory. And to catch people out in lies or mistakes.

The ONE reason it supposedly exists, is to allow the government to do a background check. Are you a prohibited person?

Now, let’s say you or I go in and lie on the 4473. It doesn’t matter where, it is a lie designed to allow us to purchase this particular firearm. If we are not prohibited people, we are guilty. On the other hand, the courts have ruled that it is a Fifth Amendment violation for a prohibited person to self report on a 4473.

Yep, if you are an actual prohibited person, and you lie about it on a 4473, you don’t get in trouble. If you are not a prohibited person and lie, you do get in trouble.

All the authority for the ATF to force the 4473 on us comes from the Gun Control Act of 1968, as amended. In particular, §922(g).

§922(g) is the list of things that make you a prohibited person.

§922(g)3 is the prohibition on being an “unlawful user” of a controlled substance. I.e., they partake of marijuana or other drugs.

Our Story

Our story begins when Patrick Darnell Daniels, Jr, was driving along, minding his own business, when a couple of LEOs pulled him over. They pulled him over for driving without a license plate.

It just so happened that one of these officers was a DEA agent. It is almost as if the DEA agent was looking for reasons to “investigate” vehicles he was interested in.
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Why are all these cases about “self-defense”?

B.L.U.F. What was supposed to be a short article regarding why we see “self-defense” in so many challenges turned into a 5000-word article covering the opening statements of the NFA hearings in 1934 plus random musings on yelling fire and other historical legal stuff.

If you get anything out of this, please at least click the like button. I’m having trouble justifying to myself the effort I’m putting into these articles.

I find myself increasingly troubled that so many cases rely on self-defense, or being part of an unorganized militia, or whatever, as a justification for the right to keep and bear arms. Just as the right to free speech doesn’t (or shouldn’t, anyway) depend on what you’re intending to be talking about, the right to bear arms shouldn’t depend on to what purpose you intend, so long as it’s lawful.
it’s just Boris, Are the courts balanced in amicus curiae?, Gun Free Zone, (last visited Jun. 25, 2023)

Boris, you are correct. I agree that it is extremely irritating to hear, over and over again, that our rights are dependent on “self-defense” or being a member of the militia or “sporting purposes” and on and on and on.

This is a stepping stone. It took us a long time to get back to this level of Second Amendment protected rights.

Consider the testimony in Congress over the National Firearms Act.
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United States v. Rahimi Petition for writ of certiorari


Prior to the Bruen opinion, the Fifth Circuit Court of Appeals heard the case of United States V. Rahimi.
On June 8, 2022, just a few weeks before the Bruen opinion, the Circuit court affirmed Mr. Rahimi’s convection.

A federal grand jury indicted Rahimi for possession of firearms in violation of sections 922(g)(8) and 924(a)(2).1 Later, Rahimi pleaded guilty. At sentencing, the presentence investigation report (“PSR”) detailed Rahimi’s lengthy criminal history. Relevant to this appeal are the state charges that were pending against him for offenses that occurred from December 2019 to November 2020. Three pending state charges resulted from Rahimi’s use of a firearm in the physical assault of his girlfriend in December 2019,2 and another state charge arose from an aggravated assault with a deadly weapon of a different woman in November 2020. Rahimi objected to the PSR, arguing that the pending charges described relevant conduct to the instant offense such that the sentence for the instant federal offense should be ordered to run concurrently to the state sentences. The district court overruled the objection, adopted the PSR, and ordered the federal sentence to run consecutively to the pending charges because they were not relevant conduct. Rahimi appeals, arguing that the district court clearly erred by concluding the pending charges were not relevant conduct.

1) Rahimi moved to dismiss the indictment on the ground that section 922(g)(8) on its face violates the Second Amendment and the district court denied the motion. Rahimi appeals this decision but acknowledges that it is foreclosed by our finding precedent. United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020), cert. denied, 141 S. Ct. 1397 (2021).
it’s just Boris, Are the courts balanced in amicus curiae?, Gun Free Zone, (last visited Jun. 25, 2023)

Briefly, Rahimi was a bad dude, doing bad things. When he was arrested, he had a firearm. He had not been convicted of a crime. Along with all the state level charges brought against him, he was also charged as a prohibited person in possession of a firearm under §922(g)(8) and §924(a)(2).

The Circuit court had already ruled in 2020 on the exact question.

We again confront a Second Amendment challenge to a federal law prohibiting individuals subject to certain domestic violence protective orders from possessing firearms or ammunition for any purpose. 18 U.S.C. § 922(g)(8). Appellant Eric McGinnis, convicted by a jury of violating § 922(g)(8), claims the statute is a facially unconstitutional restriction on his right to keep and bear arms. This court rejected a virtually identical challenge two decades ago in Judge Garwood’s landmark decision in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001). Much has changed in Second Amendment jurisprudence since then, and so we consider whether § 922(g)(8) still passes muster under our contemporary framework. It does.

Separately, McGinnis argues his conviction should be vacated because his protective order does not track the requirements of § 922(g)(8). He also asserts the district court abused its discretion by imposing a written special condition of supervised release not orally pronounced at sentencing. We affirm the conviction but remand for the limited purpose of conforming McGinnis’s written judgment to the district court’s oral pronouncement.
National Firearms Act: Hearing Before the Ways And Means, Seventy-Third Congress House of Representatives 1 (Apr. 1934)

Because of this earlier case, Rahimi’s case wasn’t a foregone conclusion.

And then there was Bruen

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Upcoming case events

Ronald Koons v. Attorney General New Jersey, 23-1900, (3rd Cir.): the state has requested a stay on the injunction issued against the New Jersey Bruen response legislation. All filings were in by May 30th. We are now waiting to see if the Circuit Court grants cert. If they do, then oral arguments will be scheduled. This is just against the preliminary injunction.

Scott Hardin v. ATF, 20-6380 (6th Cir. 2023): The 6th Circuit Court has reversed and remanded the case back to the inferior court. The original District Court judgement was that ATF gets to define bump stocks as machine guns. The Circuit court says that the District Court got it wrong. IANAL, I don’t think the district court does anything, but the state can appeal to the Supreme Court.

Robert Bevis v. City of Naperville, 23-1353, (7th Cir.): This is part of the IL AW/LCM bans. Oral arguments will be held on June 29th. It will be a couple of months after that before we hear anything back. This is a case where the Supreme court told the inferior courts that they are keeping an eye on things.

When the oral arguments are published, I’ll try using my magic speech to text software and get us a pseudo transcript.

Antonyuk v. Hochul, 22-2972, (2d Cir.): Oral arguments were heard on March 20, 2023. We are expecting an opinion at anytime. This is likely the next movement towards the Supreme Court we see.

Lance Boland v. Rob Bonta, 23-55276, (9th Cir.): The 9th Cir is stretching this one out as much as possible. While the 2nd and 7th moved rapidly, the 9th has told the parties to pick a date in August 2023. I don’t expect much movement before then. This is a challenge to California’s UHA.

Lana Renna v. Rob Bonta, 23-55367, (9th Cir.): This is another UHA challenge. They are going to schedule it sometime in August or later.

Dominic Bianchi v. Brian Frosh, 21-1255, (4th Cir.): Oral arguments were heard December 6, 2022. We are waiting for the Circuit Court to issue their opinion. This is a domino case.

This case was GVR’ed after Bruen. The case was originally decided on September 17, 2021, based on an earlier decision in Kolbe. Kolbe has been mentioned many times. It is cited by the infringers because it is a perfect example of means-end. The District and then the Circuit’s three judge panel and finally the 4th Cir. en banc, all used interest balancing to find Maryland’s AWB constitutional.

The state would like Kolbe to remain good law. If it is good law, then it allows them some sort of balancing. If, on the other hand, Kolbe is found to no longer be controlling, then many other cases that depend, at some level, on case law decided before Bruen will start to fall.

Granata v. Campbell, 22-1478, (1st Cir.): This is a challenge to the Massachusetts handgun regulatory scheme. In May 2022, the District Court used means-end to find for the state. They first played the game of “we assume the conduct is within the scope of the Second Amendment, but do not affirm that it is.” After they agree to play the game, they decide that the handgun roster is just a modest burden on the core Second Amendment rightit’s just Boris, Are the courts balanced in amicus curiae?, Gun Free Zone, (last visited Jun. 25, 2023)

From there, the District court decided to use “intermediate scrutiny”. I.e. the state is going to win.

This case was heard by the First Circuit, April 4, 2023. In light of the Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), the district court’s judgment is vacated, and the matter is remanded for further proceedings. In remanding this matter, we take no position on the outcome previously reached by the district court, and we do not retain jurisdiction. Rather, in the event that any party contests the district court’s decision, a timely new notice of appeal should be filed. No costs are awarded.National Firearms Act: Hearing Before the Ways And Means, Seventy-Third Congress House of Representatives 1 (Apr. 1934)

This is seriously messed up. The circuit court should have reversed the inferior court’s judgement. Instead, the said that the parties need a “do over”. This case is on a slow burn for the foreseeable future.

Ocean State Tactical, LLC v. State of Rhode Island, 23-1072, (1st Cir.): This is an LCM ban challenge. The inferior court found that it was unlikely that the plaintiffs (good guys) would win on the merits, that the plaintiffs weren’t being irreparably harmed by the infringement, so refused to grant a TRO or a preliminary injunction.

The plaintiffs appealed January 18, 2023. Oral arguments are still not scheduled. Full briefings do not seem to have been filed yet. This is an in limbo case.

This is another case where it was started long before Bruen. It goes to show just how much legal work was being done, and not noticed.

United States v. Rahimi, 21-11001, (5th Cir.): This was a challenge to 18 U.S.C. §922(g) regarding a person losing their Second Amendment protected rights because there is a TRO issued against them. The gist of the argument is that most TROs are boilerplate. This means that even if the person requesting doesn’t ask for it, the judge will add the wording to yank rights from the accused.

It has been appealed to the Supreme Court by the state after the Fifth Circuit court found that there is no history or tradition of stripping rights from a person without a real trial.

National Rifle Association v. Commissioner, Florida Dept. of Law Enforcement, 21-12314, (11th Cir.): This is the case where the three judge panel found that it was constitutional to ban young adults from purchasing firearms. One or more other judges on the 11th Circuit then blocked that ruling. The case is now moving to an en banc hearing.

Those are the cases that are at the appeals level. There are a couple of decisions that should drop soon.

Why Citations Matter

Our system of law is based on the concept of “Common Law”. What this means, in short, is that the law is the same everywhere it applies. A federal law applies the same way in all parts of the US. A state law applies the same way throughout that state.

It also means that how the law applies does not change from court to court, judge to judge, and party to party.

It is what takes us to “No one is above the law.”

Consider a law that was written in the late 1800s that says, “No man shall go armed within 100 feet of the ballot box”.

At the time it was written, everybody “knew” what it meant. It meant, “leave your guns at home when you go to vote.”

By the exact words, though, a woman voting could go armed to vote. Some might argue that “man” meant both man and woman. Others will argue that it actually did mean just “man” because women don’t vote.

That has changed. Women do indeed vote, today.

Here is where “case law” becomes important in the idea of “common law”.
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Just What Do All These Legal Cases Mean?

B.L.U.F. — What’s with all these court cases and what does it all mean in the grand scheme of things?

How Come We Have To Work So Hard At This?

If everything was as it should be, when the Bruen Court issued their opinion all of the states would have looked at the laws they currently had in place, looked at what would not pass muster, and then would have created new legislation to bring the state into line with the Bruen decision. The infringing states could not bring themselves to do the right thing.

In fact some (all?) of the infringing states jumped on the “Bruen Response” bandwagon to see who could do the most harm to gun owners the fastest.

This starts the long, slow march back to the Supreme Court to get more of these infringements knocked down.

There is a game that is played to accomplish this because the infringing states want to continue to infringe.

In the best of their imaginary worlds only the people they control who are loyal to them would have guns. And those firearms would not be allowed out of the control of dear leader. In their warped world view a cop would travel to work on public transport, they would be issued their duty weapon(s) and would then do a tour. At the end, they would turn in all their duty weapons and ride public transport home.

There would be nobody to stand up to their will.

To get this they need to disarm The People. This means passing regulations that disarm the people.

The Fight, Standing

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